State v. Hempley

113 S.E. 123, 120 S.C. 339, 1922 S.C. LEXIS 128

• Court: Supreme Court of South Carolina
• Decided: July 6, 1922
• Docket: 10956
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Chiee Justice Gary.

The following statement appears in the record:

“In this case the defendant was convicted of the murder of one Don Beckoff, and recommended to the mercy of the Court. When the case was called for trial, defendant’s counsel made a motion to exclude all the witnesses from the courtroom during the course of the trial. The Court granted this motion as to all the witnesses except the Sheriff and the Coroner, and refused, over the objection of the defendant, to exclude the Sheriff from the courtroom during the course of the trial. The testimony against the defendant was all circumstantial, and, to a great extent, the testimony of damaging statements that the defendant had made to the Sheriff, in the presence of other witnesses, while the Sheriff was investigating the cause of the death of the deceased, during the Coroner’s investigation.”

The fourteenth, fifteenth, sixteenth, and twentieth exceptions are as follows:

“(14) Because the Court erred in permitting the witness, D. W. Thomas, to testify to a box of cartridges ob tained by the Sheriff from the trunk of defendant, when it appeared that the Sheriff had no search warrant to search the living room or. trunk of the defendant, and there obtain evidence against the defendant.

“(15) Because the Court erred in allowing the Sheriff to testify to the same articles when it appeared that he had no search warrant to search the living room or trunk of the defendant to obtain evidence against him.

“(16) Because the Court erred in allowing the witness, D. W. Thomas, to say what was in the box of cartridges that had been obtained from the living room and trunk of the defendant when it appeared that the Sheriff, who obtained the cartridges, had no search warrant to search the trunk or the living room of the defendant.”

“(20) Because the Court erred in allowing the Sheriff to testify to what he fou'nd in the defendant’s room and in his trunk when it appeared that the Sheriff had no search warrant to search the premises or the trunk of the defendant.”

In discussing the said exceptions the appellant’s attorneys in their argument say:

“These exceptions raise practically the same question. The Court allowed the Sheriff to testify to what he found in defendant’s trunk in his private bedroom, which was discovered by the Sheriff while the defendant was incarcerated in the County jail, and the Court allowed the Sheriff to testify to what he found there when it appeared that the Sheriff had no search warrant-to search the defendant’s property, his trunk, or his room. This testimony was the main and most damaging testimony against the defendant, and upon it the counsel representing the State, laid the greatest stress in their argument. Without it the defendant would never have been convicted.”

For the reason that they raise the question upon which the defendant mainly relies, we will discuss them first.

D. W. Thomas, a witness for the State, thus testified:

“On Thursday morning, after the inquest, I went to the residence of I. N. Morgan. I was present at a time when a statement was taken down in writing from Mr. Hempley by myself, and was sworn to before Mr. Hicks. After the statement was signed the defendant went up to his room, accompanied by Officer F. H. Johnson, one of the rural policemen. ' He was up there three or four minutes before they returned. HJr. Johnson had a pistol in his hand that looked very new to me. That looks very much like the gun. (Exhibit 1.)

“Q. When he returned with Mr. Johnson, what statement, if any, did he make as to his possession of that pistol? How did he say he came into possession of it; did he say?

“Mr. Nicholls: We object, if your Honor please. Our idea is this: Every statement made by this man about the pistol and about other matters was made to officers, and was made under duress. This is our ground of objection.

“The Court: The mere fact that they were made to officers doesn’t show that they were made under duress.

“Q. Did he make a voluntary statement? A.' Yes, sir.

“Q. Any promise extended him? A. No, sir.

“Q. Any threats imposed upon him? A. No, sir.

“Q. Was it rumored or noised or was it known that he would be arrested at that time? A. No, sir.

“The Court: Was any inducement offered to him to make a statement?

“The Witness: None whatever, sir.

“The Court: How did he come to make a statement ?

“The Witness: After saying he didn’t own a pistol, he says T have got—’

“Mr. Nicholls: You wait; you can’t tell that until the Court rules.

“The Court: If that is along with some other statement made to the officers, it is ruled out. If he told them that he had a pistol, and where it was, and then went and got it, it seems to me he can say how he got it.

“Mr. Blackwood: Q. Did he say he had á pistol ? A. Yes, sir; and he said where it was. After that Mr. Johnson went with him, and he said his pistol was in his trunk up stairs in the home of Mrs. Morgan.

“The Court: Then they came back with this pistol you saw there just now?

“The Witness : Yes, sir.

“The Court: Then I think he can tell how he got the pistol.”

F. H. Johnson, a witness for the State, testified as follows :

“I am one of the rural policemen in Spartanburg County. I went to Mr. Morgan’s residence on Thursday after the finding of Beckoff’s body, in company with Sheriff White, D. W. Thomas, and Oliver and Jenkins. I accompanied Mr. Hempley to his room in Mrs. Morgan’s house. I got. a pistol there; found it in the bottom of his trunk like. Mr. Hempley said it was there.

“Q. Is this the pistol (handing Exhibit 1 to the witness) ?

“Mr. Nichols: We admit it.”

W. J. White, the Sheriff, thus testified:

“I saw him (Hempley) go into the house after this statement was made. He was accompanied by Officer F. H. Johnson. When they returned Johnson had a pistol. He said some two or three weeks ago before that time, in the early part of the night, he (Hempley) was coming out of 'the town of Greer to his home, and that on his way out, just as he got to Marcella street, he saw two young white men, both of whom seemed to be under the influence of whisky, quarreling, and had drawn pistols on each other; that the car passed them just for a.short distance, and he stopped and got out, and took the pistol out of the hands of one of them, and the other one walked off and left him, and he turned around and got back in his car, and the man he had taken the pistol from following him and asking him to give him his pistol back, and that he told him he was then drunk, and who he was, and where he lived, and that as soon as he got sober if he would come to him sober, he would give him his pistol back, that he was not going to do it then. I examined the pistol at that time, and found it had five loaded cártridges and one empty shell. I did not at that time examine the cartridge box. I asked him where he had had the pistol since that time, and he said in his trunk. * * * Before I got the box of cartridges, I went down to the jail and asked Fred Hempley if he didn’t have a box of cartridges, and he told me he had, and where they were, and I went up and got them. He told me they were at home in his trunk, and didn’t object to my getting them. Fie told me he got them at the Spartan Hardware Company. He told me about it on Sunday and on Monday I went and got them.”

N. B. Genobles', a witness for the State, testified as follows :

“I am a salesman, Spartan Hardware Company. I remember seeing Mr. Fred Hempley, the defendant, in my place on Monday prior to the time when Beckoff’s body was found in Inman. He was there about 6 o’clock in the afternoon. I sold him a .32 pistol and a box of cartridges, $32.50 for the gun and $1.50 for the cartridges, $34 in all. That is the check he signed on the Citizens’ Bank of Inman. It was a .32 long, everybody calls them a ‘special,’ but they are .32. That is the brand of pistol (Exhibit 1), and that looks like the brand of cartridges. When full a box of cartridges contains 50. Those are .32 long cartridges. The-Spartan Hardware Company is the only place in Spartanburg that sells them, that I know of. We are supposed- to have the sole agency. I identified Mr. Hempley after that time in the County jail. I recognized him as being the same man. That is the man to whom I sold the pistol. It was just about closing time, about 6 o'clock, when I sold it to him.”

W. J. Oliver, a witness for the State, testified:

“I have been staying down here with Mr. Graham ever since I came to town. I am engaged in buying and selling produce. I was in Mr. Graham’s place on or about the 13th of September, Monday. This is my headquarters when I am in the, city. It is my point of distribution. I saw Mr. Beckoff when I was there on this Monday evening, somewhere near 9 o’clock, in the garage. I was right next door .to him at Mr. Graham’s place with Mr. Jenkins. There was a man with Mr. Beckoff when I saw him last whom I didn’t know at that time, but who I afterwards learned, .was Mr. Hempley—this gentleman here. I seen no one else with him at the .time. He (Hempley) was sitting in the street in the car, and Mr. Beckoff was locking the garage door. I did not see him when he finished fastening the door. I heard the automobile leave, headed toward Mongolia street. I did not see Mr. Beckoff any more after that until I seen him at the inquest. Mr. Hempley was driving. It was a four-seated touring Ford. Just a few minutes before that I seen them jiot long before that in the garage. I don’t know as I could tell what they were doing. They were standing around the front end of the car. As well as I remember, they were fooling or working with the front end of the car. What caused me to investigate what they were doing in there was that I heard the car go in. I was in the store there next door. After I heard it go in I walked over to Henry Perry’s and got a ginger ale and come back and looked in the door. Henry Perry’s is across the street, almost as close as from here to the door. Graham’s store is right beside Beckoff’s. I don’t know whether Mr. Jenkins saw them at the same time I did or not. The car backed oút. It should have backed out, because the back end was sitting near the door, and I don’t think it could have turned around. When it left it was headed down Magnolia street way. Mr. Jenkins was there at the time. The next time I seen Beckoff after that was at the inquest where he was found. He was dead. There was a good crowd there. I saw and recognized Mr. Hempley in that body of people. I had no assistance in recognizing him. I recognized him then and there as being the same man I saw leave the garage at 9 o’clock, or about then. I think he was the last man I ever saw with Beckoff.”

The testimony tends to show that the defendant was not only willing for the pistol to be introduced in evidence, but that he 'actually informed the officers of the law where it could be found, and aided them in the search, which he directed. The testimony of N. B. Genobles explains the reason for his conduct, which was to the effect that the defendant bought a pistol and cartridges from him as salesman about 6 o’clock on Monday afternoon, just before the last time the deceased is known to have been seen alive. The defendant is the .last person to have been seen with Beckoff while he was alive, and they were then going off in a vehicle together. This was a strong circumstance tending to show that the defendant had killed him with the pistol he had just bought. The evident purpose of the defendant, in helping to find the pistol, was to show that there was no necessity for him to have purchased a pistol, as he already had one, and thus show that the testimony of Genobles was unworthy of belief. If the jury had* drawn the inference from the testimony intended by the appellant, it would have been beneficial instead of prejudicial to him.

In Gr. Ev., § 254a, the rule’is thus stated:

“It may be mentioned in this place that, though papers and other subjects of evidence may have been illegally taken from the possession of the party, against whom they are offered, there is no valid objection to their admissibility if they are pertinent to the issue. The- Court will not take notice how they were obtained, whether lawfully or un lawfully nor will it form an issue to determine that question.”

These rulings are approved in the following cases: State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; 42 Am. St. Rep. 877; State v. McIntosh, 94 S. C. 439, 78 S. E. 327; State v. Harley, 107 S. C. 304, 92 S. E. 1034 ; State v. Reeves, 112 S. C. 383, 99 S. E. 841; State v. Danelly, 116 S. C. 113, 107 S. E. 149, 14 A. L. R. 1420; State v. McDuffie, 113 S. E. 121, just filed.

The foregoing exceptions are overruled.

None of the other exceptions "(which will be reported) show prejudicial error; therefore it will not be necessary to consider them in detail, as the same objection is applicable to each of them.

Affirmed.

Mr. Justice Cotíeran and Mr. Justice Marion concur.